This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

August 23, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLEN WOLFSON,

Petitioner-Appellant, No. 07-4114

v. (D. o f Utah)

GINO CARLUCCI, UNITED STATES

OF AMERICA, SALT LAKE

COUNTY, MICHAEL HIRATA, and

STATE OF UTAH,

Respondents-Appellees.

(D.C. No. 2:06-CV-960-PGC)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. 

**

Allen Wolfson appeals the district court’s sua sponte dismissal of his

claims brought under 42 U.S.C. § 1985. Wolfson alleges the United States, the

State of Utah, U.S. Attorney Mike Hirata, and Salt Lake County all conspired

with Gino Carlucci to cover up Carlucci’s theft of equipment from Wolfson’s
 We recognize, however, that the language of § 1915(e)(2)(B)(ii) 1

regarding the failure to state a legal claim tracks with Fed. R. Civ. P. 12(b)(6)

such that review of dismissals under those two provisions should be the same.

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Hence, our review for

dismissal based on § 1915(e)(2)(B)(ii) is “for plausibility in the complaint.”

Alvarado v. KOB-TV, __F.3d__ No. 06-2001, 2007 WL 2019752, *3 (10th Cir.

July 13, 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1970

(2007)).

 Section 1915(e)(2)(B)(i) was 1915(d) at the time of the McKinney 2

decision discussed here. The old 1915(d) became part of 1915(e) in 1996.

-2-

property in return for Carlucci testifying against Wolfson and his son in court. 

Wolfson contends the different levels of government worked together to drop

charges against Carlucci in return for his testimony. We AFFIRM the district

court’s sua sponte dismissal.

Wolfson proceeded in forma pauperis below and is subject to the strictures

of 28 U.S.C. § 1915. The legal standard for dismissal under § 1915(e)(2)(B)(i)

differs from that of a dismissal under Fed. R. Civ. P. 12(b)(6). Neitzke v.

1

Williams, 490 U.S. 319 (1989); see also McKinney v. Oklahoma, Dep’t of Human

Services, 925 F.2d 363, 365 (10th Cir. 1991). Section 1915(e)(2)(B)(i) requires a

court to dismiss an in forma pauperis action if it is “frivolous or malicious.” 

Under this provision, district court judges may “pierce the veil of the complaint’s

factual allegations and dismiss those claims whose factual contentions are clearly

baseless. . .[i.e.] claims describing fantastic or delusional scenarios, claims with

which federal district judges are all too familiar.” Neitzke, 490 U.S. at 327–28. 

2
-3-

Section 1915(e)(2)(B)(iii) also allows for dismissal of suits against defendants

who are immune to such suits.

The district court sua sponte dismissed Wolfson’s claims on several

grounds. First, it correctly found prosecutorial immunity for Hirata and sovereign

immunity for the State of Utah. Second, it noted that the dismissal of criminal

charges against Carlucci did not amount to a claim under § 1985. Third, it found

that Wolfson had failed to plead any facts that would give the court jurisdiction

over Carlucci under 28 U.S.C. § 1332 or any other jurisdictional statute. Finally,

with its citation to McKinney, the district court found that Wolfson’s allegations

were sufficiently fanciful that they warranted dismissal as frivolous or malicious.

We agree with the district court’s analysis and AFFIRM the dismissal of

Wolfson’s claims. We deny his motion to proceed in forma pauperis on appeal.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge